Wednesday, June 5, 2013

Controlling the comparative can control the discrimination case

One of the key analyses in any discrimination lawsuit is whether the plaintiff is “similarly situated” to those whom he or she claims the employer treated more favorably. If the plaintiff can establish disparate treatment of those “similarly situated,” he or she can make out a prima facie case and proceed to the discrimination bonus round to prove that the employer’s legitimate non-discriminatory reason was a pretext. Conversely, a failure to prove “similarly situated” dooms a claim to the summary judgment scrapheap.

Moien Louzon, a product engineer at Ford, took an approved leave of absence to visit family in Gaza. While abroad, Israel closed its borders, stranding Louzon in Gaza. Ford initially extended his leave of absence, but by the time the State Department could evacuate him, the extension had expired and Ford had terminated him.

In Louzon’s subsequent national-origin discrimination lawsuit, Ford filed a motion in limine, which sought to precluded Louzon from offering at trial any evidence of comparable employees on the basis that none were similarly situated as a matter of law. The district court granted Ford’s motion and, on its own accord, granted summary judgment to Ford and dismissed Louzon’s case.

The appellate opinion dealt with two issues — one procedural and one substantive.

Procedurally, the court decided that the district court had improperly decided a non-evidentiary issue via the motion in limine — whether there existed any comparable employees similarly situated to Louzon. A motion in limine is a procedural mechanism to decide evidentiary issues before trial. The trial court, however, used it to decide a disputed legal issue at the heart of the case. By doing so, it treated the motion in limine as a motion for summary judgment, but without providing Louzon the procedural protections in place in responding to a summary judgment motion. The court made is clear that litigants cannot use motions in limine to get a second bite at the summary judgment apple.

Substantively, the court took up the issue of whether the trial court correctly determined that there did not exist any comparable employees similarly situated to Louzon. The court was concerned over the district court’s reliance on an outdated rule that mandated that comparative employees share the same supervisor. Instead, the 6th Circuit clarified that in determining whether employees are similarly situated, a court must “make an independent determination as to the relevancy of a particular aspect of the plaintiff’s employment status and that of the non-protected employee.” Merely examining whether there exists a shared supervisor is too narrow of a standard.

Similarly situated lies in the eyes of the beholder. How a court frames who is, and who is not, “similarly situated” can be dispositive of the issue of discrimination. For this reason, it is wise to examine any potential similarly situated employees for similar or dissimilar treatment under like circumstances before taking action against a protected employee.

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